In July 1994, at the request of the defendant, the plaintiff met with James L. Maher Jr., M.D., a consulting psychiatrist employed by Paul Revere. MaGee alleges, upon information and belief, that Dr. Maher subsequently contacted Jerome L. Missel, M.D., a Boston psychiatrist "to obtain additional information about MaGee in an attempt to reach a medical opinion favorable to Paul Revere." Dr. Missel's relationship to MaGee, if any, is not specified. In any event, the plaintiff alleges that in early 1995,

. . . Dr. Missel maliciously and intentionally interfered with MaGee's treatment and his relationship with his treating professionals by directly contacting MaGee's treating physicians, Drs. Tassy and Rashkin, with the intent to influence their opinions. In addition, Dr. Missel misrepresented, among other things, the substance of settlement negotiations entered into between MaGee and Paul Revere.

[] Dr. Missel's improper contact with Drs. Tassy and Rashkin was followed by memoranda from Dr. Missel to Drs. Tassy and Rashkin. In each case, the memorandum misrepresented the statements of MaGee's treating professionals in their prior interviews with Dr. Missel. Each memorandum attributed statements and opinions to MaGee's treating professional which were both untrue and unfavorable to MaGee.

On July 20, 1995, the plaintiff met with Robert Lloyd Goldstein, M.D., a consulting psychiatrist employed by Paul Revere who conducted an examination "lasting about 45 minutes." According to the complaint, on August 24, 1995, based on Dr. Goldstein's report, the defendant determined that no further benefits would be paid under the policy and no benefits have been paid since that date.

On November 7, 1995, the plaintiff commenced this action. On December 18, 1995, the defendant served its answer. By stipulation dated February 7, 1996, the parties consented to the filing of an amended complaint alleging the following causes of action based on the events set forth above: (1) breach of contract; (2) anticipatory breach; (3) breach of waiver of premiums clause; (4) declaratory judgment; (5) violation of New York General Business Law § 349; (6) intentional infliction of emotional distress; and (7) prima facie tort.

The Court is also mindful that under the modern rules of pleading, the plaintiff need only aver "a short and plain statement showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f).

B. The anticipatory breach cause of action

Paul Revere moves to dismiss MaGee's claim for anticipatory breach which is based on the defendant's alleged "demonstration that it does not intend to resume payment of the disability benefits due MaGee at anytime in the future." An anticipatory breach occurs when a party disclaims the duty to perform under a contract prior to the time designated for its performance and before it has received all consideration due. O'Shanter Resources, Inc. v. Niagara Mohawk Power Corp., 915 F. Supp. 560, 567 (W.D.N.Y. 1996), citing, Wester v. Casein Co. of Am., 206 N.Y. 506, 513-14, 100 N.E. 488 (1912). There must be a clear manifestation of intent communicated in advance of the time for performance that when the time arrives, performance will not be rendered. Id. (internal citations omitted).

In the absence of special circumstances "New York does not apply the doctrine of anticipatory breach where there is an alleged repudiation of an executory contract for the payment of money only." Romar v. Alli, 120 A.D.2d 420, 501 N.Y.S.2d 877, 878 (1st Dep't 1986). As the Second Department recognized in Apostolou v. Mutual of Omaha Ins. Co., 72 A.D.2d 781, 421 N.Y.S.2d 600 (2d Dep't 1979):

Even assuming that an action based upon an anticipatory breach of an accident and health insurance policy could be maintained in New York, a requisite element of such action would be a complete repudiation of the contract by the insurer ( Bell v. Mutual Benefit Health & Acc. Assn. of Omaha, 19 Misc. 2d 754, 755-56, 192 N.Y.S.2d 854, 855-56). . . . A repudiation sufficient to support an action by the insured for an anticipatory breach cannot be inferred solely from the failure of the insurer to pay installment benefits claimed by the insured to be owed . . . when, during the period of such failure to pay, the insurer has continued to accept the insured's payment of premiums under the policy ( McCann v. John Hancock Mut. Life Ins. Co., 48 Misc. 2d 325, 328, 264 N.Y.S.2d 728, 731).

(h) . . . any person who has been injured by reason of any violation of this section may bring an action in his own name . . . to recover his actual damages. . . .

N.Y. Gen. Bus. L. § 349.

[The] parties claiming the benefit of this section must, at the threshold, charge conduct that is consumer oriented. The conduct need not be repetitive or recurring but defendant's acts or practices must have a broad impact on consumers at large; "private contract disputes unique to the parties . . . would not fall within the ambit of the statute."

New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 290, 662 N.E.2d 763 (1995), quoting, Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). If the plaintiff satisfies this threshold requirement, a prima facie case may be established by pleading that the defendant engaged in an act or practice that is deceptive in a material way and that the plaintiff was injured as a result. New York Univ., 639 N.Y.S.2d at 290. As this Court recognized in Tinlee Enterprises, Inc. v. Aetna Cas. & Sur. Co., 834 F. Supp. 605 (E.D.N.Y. 1993), the injury must be to the public generally as distinguished from the plaintiff alone. Id. at 608, citing, Riordan v. Nationwide Mut. Fire Ins. Co., 756 F. Supp. 732, 739 (S.D.N.Y. 1990), aff'd in part, question certified in part, 977 F.2d 47 (2d Cir. 1992), certified question withdrawn, 984 F.2d 69 (2d Cir. 1993). The legislative history of the statute makes clear that section 349 was intended to "'afford a practical means of halting consumer frauds at their incipiency without the necessity to wait for the development of persistent frauds.'" Oswego, 85 N.Y.2d 20 at 25, 623 N.Y.S.2d at 532, quoting, Mem. of Governor Rockefeller, 1970 N.Y. Legis. Ann. at 472-73.

In the Court's view, the plaintiff's allegations are insufficient to satisfy these standards. As set forth above, MaGee alleges upon information and belief that the defendant maintains a "national policy to terminate unprofitable disability insurance policies." There are no facts alleged however, that would give rise to such an inference. At most, MaGee claims that the defendant breached its obligation to pay him insurance benefits and that on two occasions agent of Paul Revere contacted his treating health care professionals in an effort "to interfere with the physician patient relationship." These allegations are insufficient to demonstrate the existence of a "national policy." Indeed, any other conclusion would effectively permit a plaintiff to convert almost any garden variety breach of contract cause of action into a violation of section 349. Accordingly, Paul Revere's motion to dismiss the plaintiff's claim for violation of New York General Business Law § 349 for failure to state a claim is granted.

Applying these rigorous standards, the Court finds that MaGee's claim for intentional infliction of emotional distress fails as a matter of law. As stated above, this case, at its core, is one for breach of contract based on a failure to pay insurance benefits with an extra twist insofar as the defendant's investigation practices are concerned. There are no allegations contained in the complaint which, if true, would constitute conduct so outrageous to give rise to a claim for intentional infliction of emotional distress. Accordingly, the defendant's motion to dismiss the intentional infliction of emotional distress cause of action for failure to state a claim is granted.

E. The prima facie tort cause of action

The final cause of action that the defendant moves to dismiss pursuant to the Fed. R. Civ. P. 12(b)(6) is MaGee's claim for prima facie tort. Similar to his intentional infliction of emotional distress cause of action, the plaintiff alleges that "Paul Revere's conduct involved fraud, evinced a high degree of moral turpitude and demonstrated wanton dishonesty sufficient to imply a criminal indifference to civil obligations." Based on this characterization of the events described above, MaGee claims that he is entitled to compensatory and punitive damages under the prima facie tort umbrella. Again the Court disagrees.

The elements of prima facie tort are (1) intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts that would otherwise be lawful. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43, 490 N.Y.S.2d 735, 741, 480 N.E.2d 349 (1985). In order to recover for prima facie tort, the plaintiff must allege that

malevolence is the sole motive for [the] defendant's otherwise lawful act or, . . . unless [the] defendant acts from disinterested malevolence . . . by which is meant that the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another.

Applying these standards, the Court dismisses the plaintiff's claim for prima facie tort for several reasons. First, the plaintiff fails to allege any special damages. Second, MaGee does not even claim that the conduct was otherwise lawful as he alleges that the defendant's conduct "involved fraud." Accordingly, the plaintiff has failed to state a claim for prima facie tort, and the defendant's motion to dismiss this cause of action pursuant to Fed. R. Civ. P. 12(b)(6) is granted.

F. The punitive damages claim

In addition to moving to dismiss those causes of action discussed above, Paul Revere also seeks to have the Court strike those portions of the complaint seeking punitive damages. In New York, the courts require a plaintiff to establish four elements in order to obtain punitive damages "as an additional and exemplary remedy when the claim arises from a breach of contract:" (1) the defendant's conduct must give rise to an independent tort; (2) the tortious conduct must be of the egregious nature set forth in Walker v. Sheldon, 10 N.Y.2d 401, 404-05, 223 N.Y.S.2d 488, 491, 179 N.E.2d 497 (1961) such as fraud aimed at the public generally; (3) the egregious conduct must be directed at the plaintiff; and (4) the conduct complained of must be part of pattern directed at the public generally. New York Univ., 639 N.Y.S.2d at 287, citing, Rocanova v. Equitable Life Assurance Soc'y., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 342-43, 634 N.E.2d 940 (1994). The standard for awarding punitive damages in first party insurance actions is a "strict one." Rocanova, 83 N.Y.2d at 613, 612 N.Y.S.2d at 343.

Applying this standard, the Court need only look to the first element set forth in the New York Univ. case. Having dismissed the plaintiff's claims for violation of the New York General Business Law, intentional infliction of emotional distress and prima facie tort, the Court finds that the claims alleged in the complaint do not give rise to an independent tort necessary to support a claim for claim for punitive damages. Further, for the sake of a complete analysis the Court notes that the allegations contained in the complaint do not satisfy the requirements of Walker v. Sheldon, supra, and the conduct alleged is not part of a pattern directed at the public generally. Accordingly, the defendant's motion to strike all the claims for punitive damages is granted.

III. Conclusion

Having reviewed the parties' submissions, it is hereby

ORDERED, that the defendant's motion to dismiss the plaintiff's claims for anticipatory breach, violation of New York General Business Law § 349, intentional infliction of emotional distress and prima facie tort and to strike the prayer for punitive damages, is granted.

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